Messages - joshdelight

Offers, as stated above, are promises (usually). Note that Jane's offer to Mary over the phone was a PROMISE - 'I WILL pay you $6000 if you WILL sell me your car'. The hypo even uses the word offer! This is without question a Bi K - it is certain that Jane is bargaining for the promise to sell the car. What would be the performance - handing over the keys?

To stray slightly from the issue, the simple fact that something identifies itself as an "offer" is not dispositive that it is, in fact, an offer. The offer is that which creates a power of acceptance in the offeree. Ads generally fail as offers because they usually do not specify who has the power to accept, they often do not specify a value of the offered goods, and they almost always fail to manifest an intention to be legally bound. A famous example of an ad that IS an offer is Carlill v. Carbolic Smoke Ball Co. 1 Q.B. 256 (1893).

Granted, I agree with you that the offer is not the newspaper ad but Jane's initial telephone call; but hey, we're in law school, and we live to argue.

I agree that the promise to pay $6000 was consideration for Mary's promise to sell the car to Jane. A promise can indeed be consideration--and fortunately the Restatement (Second) of Contracts § 75 (1981) provides under what circumstances a promise can be consideration: "...A Promise which is bargained for is consideration if, but only if, the promised performance would be consideration."

The promised performance is the payment of $6000. This would be consideration. Therefore, as you have said already, the promise to pay $6000 for the car is also consideration.

When analyzing bilateral vs. unilateral contracts, rather than looking at promise or performance as acceptance, I prefer to defer to Murray's analytical tool: At the moment of the formation of the K, if one party has a right (but no duty), and the other party has a duty (but no right), then there is a unilateral K. If at the moment of formation of the K both parties have both a right and a duty, then it is a bilateral K.

In this case, both parties have rights and duties; Jane has a right to the car and a duty make good on the promise to pay, and Mary has a duty to transfer title and possession of the car to Jane and a right to Jane's $6000. Therefore, it is a bilateral K.

As far as (2) is concerned, if you are able to express your work experience in a straightforward and relevent way in an application, then it will most certainly benefit the profile of your application. As you are probably aware, grades and LSAT scores carry the most weight on an application; however, in an increasingly competitive environment for those seeking admittance to LS, any differentiation that puts you above the masses is a plus.

An agreement was formed for the sale of real property for $8,500 with $100 to be paid at the time of the formation and the balance of $8,400 to be paid at the settlement. The $100 was paid as required. The writing contained the following provision: "in the event that the buyer *cannot* make the settlement, he may cancel this agreement without any further liability on his part, and the deposit money returned."

The buyer sought to make settlement, but the seller refused to perform. What result?

*****As I see it, the issue is whether the language of the agreement constitutes a freedom of termination on behalf of the buyer such that the buyer suffers no detriment for his promise to purchase; or, in other words, whether the language of the agreement shows a "mutuality of obligation" (consideration) such that the seller's refusal to perform constitutes a breach of K.

In this case, since the conditional language uses the word "cannot," this is forms a K with a term that conditions full performance on the buyer's ability to pay at the time of settlement. This therefore is not a "free pass" giving the buyer a freedom of termination, and therefore forms a K.

If the language of the agreement had said "will not," than this would give the buyer a freedom of termination, and there would not be any detriment to the buyer in accepting the seller's offer. Consideration fails, and therefore no K.

Thanks... I'll need it. Hopefully these new fangled drugs will make it not last.

Xanax dispensers! Now THERE'S an idea worth figuring out. Hell, if they work well enough to let the First Lady deal with her reality, they'll work for anyone.

Do you have a papercut? Xanax to the rescue! Do you have a contracts fact pattern that just won't fit the rules? Xanax can help. Do you have a husband bent on ushering in the dark horsemen of the apocalypse? Forget about it with Xanax!

Interestingly enough, it appears that there are so many stressed people out there that the ALCU reported a MASSIVE spike in online donations over the past two days.

JD - check out UCC 2-209 (1) , in that situation a breach would not be in her best interest, and the offeror would recover heavy damages. However, in this situation, assuming good faith, offeree could modify the contract for "impracticability" if:- Contract excutory, not executed (which it is)- Modifications are fair and equitable...- in view of the circumstances not anticipated when contract was formed.

This modification would have to be mutually agreed upon, would it not?

But it has already been decided that in certain circumstances, a breach is something that the courts will encourage, for economic reasons alone. Is this a tort however? Perhaps, technically, but that is still a stretch... however, there is a tort for inducing one to breach, I believe.

There is an implied convenant of good faith in every contract. Concerning commercial contracts, the UCC directly handles this concept. Good faith is defined as "honesty in fact in the conduct or transaction concerned." UCC § 1-201(19). Additionally, "every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement." UCC § 1-203. Given this, it is possible to argue that an intentional breach of contract sounds in tort. However, the official comment to § 1-203 states:

This section does not support an independent cause of action for failure to perform or enforce in good faith. Rather, this section means that a failure to perform or enforce, in good faith, a specific duty or obligation under the contract, constitutes a breach of that contract or makes unavailable, under the particular circumstances, a remedial right or power. This distinction makes it clear that the doctrine of good faith merely directs a court towards interpreting contracts within the commercial context in which they are created, performed, and enforced, and does not create a separate duty of fairness and reasonableness which can be independently breached. Id. at comment.

This comment apparently was an amendment added after the adoption of the UCC to address a number of cases where the courts attempted to create a new tort for a simple "bad faith" breach. 1-9 Murray on Contracts § 124. (Granted, an official comment has persuasive authority only.) "Thus, a breach of the duty of good faith is nothing more or less than a breach of contract." Id.

Murray discusses a number of cases where there is a special relationship (e.g. fiduciary) between the bound parties. "[A] number of courts have been willing to award punitive damages where there has been a wilful breach of a fiduciary duty, such as that owed by a real estate broker to a client or by an insurance company to a client. Where an insurance company wilfully withholds payment of a claim, i.e., where it has no reasonable basis for denying the claim and it knows that it has no basis for denial or recklessly disregards its lack of a reasonable basis for denial, the insurer has not only breached the contract, it has acted in extreme bad faith which, according to a number of courts, amounts to a tort." Id. However, the attempts to extend this new tort beyond fiduciary relationships has not been succesful, Id.; the amended comment on UCC § 1-203 is a reflection of this.

Is your professor/book asserting that ALL breaches of contract sound in tort?

Contract law and tort law are, as we all hopefully know, separate areas of the law. The interests that each of the two areas of law protect are different. The various interests protected by contract law all can be generally stated as interests in having promises performed as between two or more parties. In tort law, however, the common thread of the legal interests are the freedom from harm (in its various and sundry forms).

Also, the duties of conduct within contract law generally arise from the promises of the bound parties, while the duties of conduct in tort law are imposed by the law itself. Granted, this is not to say that duties of conduct within contract law are not additionally imposed by the external law and statues (the UCC is a prime example of a statute imposing certain rights and duties upon parties external to the duties already agreed upon as between the bound parties). However, breaching a contractual duty is breaching a standard of conduct created by the parties themselves, and unless such a breach also violates an external duty arising from the body of tort law, there is no cause of action in tort.

Damages in contract law are those that place the aggrieved party in as good a position as she would have been had the contract been fully performed, and are based on the reasonable expectations of the aggrieved. "Damages for breach of contract are normally measured by the value of the aggrieved party's reasonable expectations." 1-1 Corbin on Contracts § 1.1.

Damages in tort law are awarded on the basis of injury. Injury denotes the invasion of any legally protected interest of a person. Restatement, Second, Torts § 7.

Additionally, my professor for contract law is John E. Murray, Jr. (as in Murray on Contracts), and he absolutely disagrees with the assertion of your professor (and your book), if your professor asserts that breach of contract invariably gives rise to an action in tort.